Our Legal Heritage Part 109

But Charles' successor, King James II was Catholic and gave many offices to Catholics. This prompted a reaction against Papists and more statutes restricting them. After James II was chased out of England, a statute of 1688 required suspected Papists in London to make a declaration that they were not Catholic, did not adore the Virgin Mary or any saint, did not go to ma.s.s, or else stay ten miles outside of London. Excluded were tradesmen and manual workers, who had only to register. All Papists had to forfeit their arms and any horse worth more than 5 pounds. Also, no King or Queen or spouse of such could be a Papist, but had to make the same declaration as members of Parliament, and join in the communion of the established Church of England. As of 1696, a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. As of 1698, Papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. Also, Popish parents were prohibited from forcing their children who were inclined towards Protestantism to become Catholic by refusing them suitable maintenance. As of 1699, a reward of 100 pounds was offered to any person who apprehended a Popish bishop, priest, or Jesuit saying ma.s.s. Also, no Papist was allowed to buy land.

- Judicial Procedure -

As of 1679, no man could be held in prison but on a charge or conviction of crime or for debt. Every prisoner on a criminal charge could demand as a right from the Court of the King's Bench the issue of a writ of habeas corpus which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality.

This forced trials to be speedy, which they had not hitherto been. Now it was impossible for the Crown to detain a person for political reasons in defiance of both Parliament and the courts, as Charles I had done.

The writ was suspended in times of war and domestic unrest: 1689, 1696, 1708.

In 1670, William Penn was arrested for sedition for delivering a sermon in London, contrary to the statute that only the Church of England could conduct meetings for wors.h.i.+p. The jurors would not convict him, so were gaoled and fined by the justices. The jurors filed a writ of habeas corpus in the Court of Common Pleas, which held in their favor.

Thereafter the English jury had full independence to decide verdicts. By court decision of 1679, jurors were held not to be responsible to the justice for their verdict.

After 1688, hearsay was inadmissible as evidence, which c.o.ke had recommended. The old system of original writs was abandoned, and the general concept or a wrong to person or property took its place.

A person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor [supervisor of students taking an eexam], clerk, or notary in the courts had to take the required oaths of allegiance and supremacy.

As of 1692, persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony.

As of 1696, persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. Those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. They could have a copy of the panel of jurors at least two days before trial. They could be represented in their defense by not more than two counsel learned in the law and a.s.signed by the court. Their counsel had free access to them at all reasonable hours. They could make proof through lawful witnesses under oath. In a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction.

In a trial of a peer, the others peers in Parliament determined the outcome by a majority vote.

Jurors were required to have at least 20 pounds income from freehold land or rents in fee, fee tail, or for life. This increase in the quality of the jury enabled it to better discern the issues in dispute.

Jury sympathy was determined by the sheriff who chose the jury. So if a sheriff was popularly elected, as in London, he chose jurors who favored individual and corporate liberty. If the king selected the sheriff, he chose tories, who supported the Crown.

Issues of b.a.s.t.a.r.dy or lawfulness of marriage had to be tried by a jury.

The civil suit of trespa.s.s on the case branched into a.s.sumpsit [a promise], trover [to recover goods converted to the use of another], deceit, negligence, and libel and slander. The latter supplements bad words punished by the local courts and defamation punished by the church courts. Trover becomes the normal mode of trying the t.i.tle to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff.

This is an example of the initiation of a suit by a writ for trespa.s.s on the case: The King to the sheriff &c. as in Trespa.s.s to show: wherefore (e.g.:___) he fixed piles across the water of Plim along which, between the Humber and Gaunt, there is a common pa.s.sage for s.h.i.+ps and boats, whereby a certain s.h.i.+p, with thirty quarters of malt of him the said A, was sunk under water, and twenty quarters of the malt of the price of one hundred s.h.i.+llings perished; and other wrongs &c. as in trespa.s.s.

This is an example of a writ for trespa.s.s on the case in a.s.sumpsit: The King to the sheriff greeting &c. as in Trespa.s.s to show: wherefore whereas he the Said X undertook well and competently to cure the right eye of the Said A, which was accidentally injured, for a certain sum of money beforehand received, he the same X so negligently and carelessly applied his cure to the said eye, that the said A by the fault of him the said X totally lost the sight of the said eye, to the damage of him the said A of twenty pounds, as he saith, and have there &c. wherefore whereas he the said X undertook to make and build three carriages for conveying victuals of him the said A to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said X did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said A hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said A as it is said: and have there &c.

This is an example of a writ for case on indebitatus a.s.sumpsit: The King to the sheriff &c. as in Trespa.s.s to show: for that, whereas the said X heretofore, to wit (date and place) was indebted to the said A in the sum of for divers goods wares and merchandises by the said A before that time sold and delivered to the said X at his special instance and request, and being so indebted, he the said X in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said A to pay him the said sum of money when he the said X should be thereto afterwards requested. Yet the said X, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said A in this behalf, hath not yet paid the said sum of money or any part thereof to the said A (although oftentimes afterwards requested). But the said X to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said A of ------ pounds as it is said. And have you there &c.

This is an example of a writ for case for trover: The King to the sheriff greeting &c. as in Trespa.s.s to show: for that, whereas the said A heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great Britain; and, being so possessed thereof he the said A afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said X by finding; Yet the said X well knowing the said goods and chattels to be the property of the said A and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said A in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said A (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said X's own use, to the damage of the said A of ____ pounds as it is said; and have you there &c.

The rigid writs with specific forms of action for common law cases started to fall into disuse. Later, trespa.s.s on the case bifurcates into misdemeanor and the tort of trespa.s.s.

Persons in prison on suspicion of treason could not be released on bail as of 1688.

If one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. A person found guilty of malicious prosecution recovered his costs from his accuser.

Mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law.

Merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order.

After the Restoration, all legal decisions of the Commonwealth and Protectorate were confirmed subject to a right of appeal.

The Star Chamber was not restored, and Parliament a.s.sumed its control of the press. The King's Bench succeeded to most of the Star Chamber's jurisdiction. No longer could the Privy Council influence criminal cases and the general supervision of legal processes through the Star Chamber.